In this document COMMISSION FACTORY PTY LTD is also referred to as "Commission Factory". "CF", "We" "Our" or "Us" and You are also referred to as "Your", "Merchant", "Member" or "Advertiser".
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU AND COMMISSION FACTORY ("the Agreement").
THE AGREEMENT IS BETWEEN YOU AND COMMISSION FACTORY AND GOVERNS YOUR USE OF THE COMMISSION FACTORY ONLINE AFFILIATE MARKETING NETWORK AND COMMISSION FACTORY SERVICES. TO AGREE TO THESE TERMS AND CONDITIONS, CLICK "you agree." IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK "you agree" AND DO NOT USE THE COMMISSION FACTORY ONLINE AFFILIATE MARKETING NETWORK OR ANY COMMISSION FACTORY SERVICES.
YOUR USE OF THE COMMISSION FACTORY ONLINE AFFILIATE MARKETING NETWORK AND/OR ANY COMMISSION FACTORY SERVICES IS AN AFFIRMATIVE INDICATION THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.
1.1We operate an Affiliate marketing network (the "Network"), which enables advertisers like You (the "Merchants") to access Our pool of Publishers (the "Affiliates") to promote your online store, service and/or products. The Network includes CF's websites and related web-interfaces, data and software.
1.2You will submit an application to Us for a merchant account which will be considered by Us and either accepted or rejected. We have absolute discretion whether to accept or reject Your application and in order for Us to make such decision we may ask You to provide Us with more information about You and your product/service.
2.1As an approved merchant on the Network, You will be wholly responsible for monitoring and managing all aspects of Your merchant account including but not limited to:
2.1.1Approval or rejection of Affiliates;
2.1.2Approval or rejection of sales, leads, sign-ups or other such applicable transaction (collectively referred to as "Transactions" and more particularly described in clause 5 below);
2.1.3Placement and use of Your advertising material (including but not limited to images, text, trade marks, logos, banners, urls) on Affiliates websites (referred to as "Your Merchant Link" and "Your Merchant Links");
2.1.4Managing all programs/campaigns ("program" or "programs") within Your merchant account;
2.1.5Ensuring there is sufficient credit deposited with CF to cover your liabilities to CF and Affiliates (being those Affiliates approved by you ("Approved Affiliates")) (see clause 2.2 below); and
2.1.6Monitoring fraudulent or illegitimate activity (see clauses 2.10 to 2.12 below).
Commission Factory bears no responsibility whatsoever for the monitoring and managing of Your merchant account including any program or programs within/connected to Your merchant account.
2.2You will be liable to pay commissions on Transactions generated by any Approved Affiliates on the Network. Prior to You approving Affiliates on the Network You determine whether the commissions You will pay for each Transaction will be a flat rate or a percentage of the value of the Transaction.
2.2.1Your merchant account will only remain active whilst you have sufficient credit with Us. You will have sufficient credit with Us if the amount in Your account is equal to or exceeds the total sum of:
2.2.1.1commissions that are payable in respect of Transactions generated by any Approved Affiliates whether or not you have approved such Transactions;
2.2.1.2"Override" fees (see clause 3 below) that are payable to Commission Factory in respect of Transactions generated by any Approved Affiliates whether or not you have approved such Transactions; and
2.2.1.3Monthly service fees (see clause 3 below) that are payable to Commission Factory.
2.2.2If Your merchant account has insufficient credit, Commission Factory may deactivate or suspend its operation without notice to you.
2.2.3In the event that Commission Factory deactivates or suspends the operation of Your merchant account You will not hold Commission Factory liable or responsible for any loss or damage You suffer as a result of that deactivation or suspension.
2.3We do not guarantee that Your participation as a merchant on the Network:
2.3.1will result in the successful marketing of Your product and/or service;
nor
2.3.2that any online traffic to your website will be generated.
2.4Commission Factory prohibits the use of the Network by Merchants who operate websites containing pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content.
2.5You will not hold Commission Factory liable or responsible for Your advertising material being placed on an Affiliate's website which contains pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content. The management and monitoring of the use of Your advertising material on Affiliate websites is Your sole responsibility.
2.6Should a dispute arise between You and an Affiliate and Commission Factory is requested by You and/or the Affiliate to intervene and assist in resolving the dispute, any such intervention and assistance provided by Commission Factory is without prejudice to Commission Factory's rights under the terms of the Agreement and Commission Factory will not be held responsible or liable for the result of such intervention and assistance.
2.7You must not breach anti-spam laws. Commission Factory may terminate the Agreement and deactivate your merchant account if You engage in sending spam or unsolicited promotional activities.
2.8The top-level domain URL maintained by You in any program or in the specified banner URL landing pages must be identical. This is in order to ensure Transactions are accurately tracked on the Network.
2.8.1Once a program has been activated the top level domain URL cannot be altered. If a different top level domain URL is specified in either location, Commission Factory reserves the right to terminate the program.
2.9You must provide timely responses to Approved Affiliates in relation to Your program or programs. All communication with Approved Affiliates should be via the merchant interface on the Network. If You change any terms and conditions in relation to Your program or programs You must inform Approved Affiliates of such changes in a timely fashion via the merchant interface on the Network.
2.10You will actively manage and monitor Your merchant account and all active programs for fraudulent or illegitimate activity (e.g. use of invalid or stolen credit cards, falsified or duplicate leads, automated purchasing or lead submission).
2.11Commission Factory has in place automated checking processes that:
2.11.1cross references the IP addresses from where Transactions originate against certain available blacklists. Any such IP addresses which are found to be blacklisted are brought to Your attention by Commission Factory red flagging those Transactions in Your merchant account. It is then up to You to further investigate the legitimacy of the transaction and/or whether it is fraudulent. Commission Factory is unable to further investigate such Transactions because the data relating to such Transactions is not accessible by Commission Factory (e.g. credit card details, the product/service relating to the transaction, purchaser details, seller details, etc).
2.11.2cross references affiliate details against certain available blacklists including:
(a)the IP address used to sign up as an affiliate;
(b)the user name of the affiliate account;
(c)the email address used by the affiliate in signing up as an affiliate; and
(d)the IP address used by the affiliate to log into their account.
If any such details are found to be blacklisted, Commission Factory will cancel or deactivate the affiliate's account.
2.12Notwithstanding clause 2.11, Commission Factory accepts no responsibility for any fraudulent or illegitimate Transactions or fraudulent or illegal activity by an Affiliate on your Merchant account and You will not hold Commission Factory liable for any loss You suffer as a result of any such fraudulent, illegitimate or illegal Transactions or conduct.
3.1In consideration for you accessing the Network, You will pay Commission Factory a service fee or "Override" on Transactions as well as a monthly service fee.
3.2The "Override" is an amount of 25% (inclusive of GST) of the commission paid/payable by You to an Affiliate and is payable by You to Commission Factory at the time of each transaction. Commission Factory will debit Your merchant account at the time of each transaction the amount of any "Override". For example, if You pay/are liable to pay AU$1 in commission to an Affiliate, the service fee is AU$0.25 making a total of AU$1.25.
3.3In addition to the "Override", You are liable to pay Commission Factory, in advance, a monthly service fee in order to initially access the Network and thereafter to maintain access to the Network. The amount of this monthly service fee will vary depending on the level of service You have chosen.
3.4Failure to pay a monthly service fee or the "Override" fees will result in a suspension of Your merchant account until such time as those fees have been paid and Your merchant account is in put into credit balance (see clause 2.2 above). Continued failure to pay the monthly service fee may result in a permanent suspension of Your merchant account.
3.5All fees paid to Commission Factory are non-refundable.
3.6Any additional fees and amounts depend on a range of factors. A full fee schedule/quote that outlines our fees and charges will be provided as part of your invitation to Commission Factory.
4.1Your merchant account must always remain in credit (see clauses 2.1 and 2.2).
4.2Approved Affiliates will debit Your merchant account the amount of the commissions due by You to them for validated Transactions. In the event that there are insufficient funds in Your merchant account from which Approved Affiliates can effect such payment Commission Factory will not be liable to Approved Affiliates and will not pay Approved Affiliates in respect of such commissions
4.3In the event that You fail to make payment to Commission Factory for any amounts that become due and payable by You under the Agreement and Commission Factory incurs further legal or other expenses in seeking to recover those amounts from You, You will be liable to Commission Factory for the full amount of any such legal and/or other expense.
5.1A Transaction occurs when a visitor or viewer of an Approved Affiliate's website or other promotional method (e.g. email) visits your website and:
5.1.1immediately buys something or completes another call to action such as filling out a form; or
5.1.2does not immediately buy something or complete another call to action such as filling out a form but subsequently returns to Your website and does so. However, in this circumstance a Transaction will only occur if the cookie / tracking period has not expired since the Visitor first or subsequently clicked or viewed advertising/creative; and if during that time the visitor clicks on Your Merchant Link or views advertising creative from more than the one Approved Affiliate, the Transaction will be considered to have originated from the Approved Affiliate's on which the visitor most recently clicked or viewed advertising.
5.2Approved Affiliates will earn commission for any Transactions which are (subject to clause 5.3) validated by You in Your merchant account, which validation you must not unreasonably withhold. For example, it would be reasonable for You to withhold validating a Transaction that was fraudulent or illegitimate. It is up to You to decide whether or not a Transaction is valid. If an Approved Affiliate does not agree with Your decision not to validate a Transaction that is a matter for You and the Approved Affiliate to deal with.
5.3Validation of a Transaction which is greater than thirty (30) calendar days old will occur automatically and cannot be disputed or reversed by You.
5.4The commission rate in place at the time a Transaction occurs is the commission rate applicable to that Transaction regardless of whether it has been validated or not.
5.5To ensure the integrity of the tracking and Affiliate payment for Transactions driven to the Merchant site, all programs will remain inactive until the relevant tracking codes provided to Merchants for implementation have been verified by Commission Factory to be functioning correctly.
5.6The Commission Factory tracking code provided to Merchants must not be modified in any way or used in any programming method or with technology that may degrade the integrity of the tracking of Transactions. In the event that Commission Factory determines that You are in breach of this clause, it may terminate any programs for which the tracking code was issued.
5.7De-duplication of transactions against other marketing channels and affiliate marketing networks must be disclosed before the program goes live and implementation is solely the merchants responsibility. It is agreed that any duplicate commissions paid due to failure to implement the de-duplication technology are not recoverable.
5.8Exchange rates used to calculate commissions payable are agreed to be accurate and may include exchange fees charged by third party services.
6.1You are responsible for providing CF with creative material and promotional tools with respect to program or programs. Normally this will include as a minimum:
•Five or more Banners;
•Data Feeds (for Merchants with more than 10 products); and
•Coupons, which must be supplied using the correct channels within the merchant interface on the Network
6.2Merchants agree that they will not decline affiliates in a predatory fashion, or decline for reasons that are unfair. For example, Merchants are not allowed to decline affiliates simply because they are a current Member of one or more other Affiliate networks. Network choice is a freedom given to affiliates and is not to be dictated by a Merchant.
6.3Merchants agree that some Affiliates are granted a "VIP" status within the network and are therefore not subject to the normal approval process or manual approval. These Affiliates have been proven as ethical and high earners by the network and are granted certain rights.
6.4You will not hold Commission Factory responsible for Your merchant account and/or program settings or closures and any resulting loss or damage You incur as a result of such settings or closures.
6.5You are responsible to set and monitor compliance by Approved Affiliates of any terms and conditions which apply to Your program or programs.
6.5.1You acknowledge that in the absence of any specific terms and conditions regarding the promotional methods/tools You require be used by Approved Affiliates, Approved Affiliates may use any method/tools to promote Your program or programs.
6.5.2You acknowledge that in the absence of any specific terms and conditions regarding the use by Approved Affiliates of third-party search engines such as Yahoo, Bing, Google, Ask etc (including the use of keywords) to promote Your program or programs, Approved Affiliates may use any third-party search engines without limitations as to the use of keywords to promote Your program or programs.
6.5.3You must act in good faith and abide by any terms and conditions You set when validating or cancelling Transactions.
6.6Commission Factory may from time to time request from You information relating to Transactions for the purposes of:
6.6.1Audits that Commission Factory may carry out on the Network for the purposes of ensure the Network is operating efficiently including the underlying databases and tracking and reporting systems.
6.6.2Investigating high Transaction cancellation rates relating to Your program or programs. Commission Factory may request Transaction information from You in order to carry out such investigation which information You will not unreasonably withhold.
6.6.3You must provide Commission Factory with any such information within five (5) business days of receiving a request from Commission Factory which information you must not unreasonably withhold.
6.7Third party software will not correctly record Transactions on the Network. You agree that You will not rely or nor will You seek to compel Commission Factory to rely on reporting generated by third party software in respect of web traffic (including Transactions) generated via the Network. You acknowledge that reporting generated by third party software will be of no relevance whatsoever to Your obligations under the Agreement.
6.8During the Term of this Agreement, You shall not solicit any Affiliate or Approved Affiliate, web site, or e-mail provider that is obtained through the Services provided by Commission Factory under this Agreement, nor shall You transfer any Affiliate obtained through the Services provided by Commission Factory under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by Commission Factory hereunder, and You shall not encourage any such Affiliate to so transfer. In the event You do directly solicit or cause to be transferred any Affiliate, You shall pay Commission Factory what Commission Factory would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Merchants from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchants from advertising, merchandising or promoting its products or services.
7.1The Agreement commences when You submit an application which is accepted by Commission Factory. The Agreement will stay in force until it is terminated in accordance with these terms and conditions. Either You or We can terminate this Agreement by giving the other party one calendar month's written notice. A termination will subject to this clause take effect on the expiry of such notice of termination.
7.2Subject to clause 7.3, Your merchant account and all programs will be deactivated or closed on and from the date of termination.
7.3In the event that the cookie period offered to Approved Affiliates expires after the period of notice stipulated in clause 7.1 but in any event no more than 60 days thereafter (the Residual Cookie Period"), then Termination of the Agreement (and the associated closures of all programs and Your Merchant account) will be effected only after expiry of the Residual Cookie Period. Cookie periods for the purposes of this clause shall be calculated from the date of service of a notice of termination under clause 7.1.
7.4All Transactions during the Residual Cookie Period shall be dealt with in accordance with the Agreement.
7.5Merchant programs that have not been made active after a period of one (1) year will be cancelled and the Merchant's account closed. Commission Factory will take reasonable steps to contact a Merchant before closing a Merchant's account. In the event that Commission Factory is unable to contact a Merchant and then closes the Merchant's account, any credit will be forfeited by the Merchant to Commission Factory and become (by way of future assignment) the property of Commission Factory.
7.6In the event that You do or omit to do something under the Agreement that has the effect of allowing Transactions to not being properly recorded on the Network, any commissions due to Approved Affiliates for such Transactions will still remain payable by You to the Approved Affiliate. You authorize Commission Factory to debit Your merchant account in respect of those commissions and effect payment to the Approved Affiliates.
7.7Subject to the other provisions in the Agreement, You must not cancel a program within Your merchant account within the first three (3) months of such program being set by You to a "live" status.
7.7.1The first three (3) months must elapse (starting from the date in which the program went live) before a program can be cancelled.
7.7.2After the three month (3) period has expired the process of cancellation can begin by giving all Approved Affiliates on the program 30 days notice that the program will be closing.
7.7.3If You insist on closing down a program within the initial three (3) month period then You agree to forfeit the full amount of any credit balance in Your merchant account. Without prejudice to any other rights We or an Approved Affiliate may have against You, those funds will be applied towards costs incurred by Commission Factory for advertising, promotion, integration, general expenses and any educational material that may have been supplied to You. The funds may also be used to reimburse Approved Affiliates for Transactions until the cookie period has elapsed entirely.
7.8Either You or We can terminate this Agreement immediately by giving the other party written notice if the other party:
(a)is, or likely to become, insolvent or bankrupt
(b)is unable to pay its debts or negotiates with its creditors; or
(c)appoints an administrator or other insolvency practitioner.
8.1Affiliates are approved by You in Your merchant account in relation to a program or programs in any one of the following ways:
8.1.1By You manually approving them within 30 days of an Affiliate submitting a request to You for approval; or
8.1.2Automatically, upon a request by an Affiliate for approval being submitted to Your merchant account, if Your merchant account is set to automatically approval Affiliates; or
8.1.3Automatically, if neither 8.1.1 nor 8.1.2 applies and more than 30 days have passed after an Affiliate has submitted a request to You for approval.
8.2You may terminate an Approved Affiliate from Your merchant account or from any program or programs at any time by giving the Approved Affiliate written notice of the termination and informing Us so that we may process the termination on the Network. In the event of you terminating an Approved Affiliate from Your merchant account you must:
8.2.1Give Commission Factory 24 hours (excluding weekends and public holidays) in order to process the termination on the Network; and
8.2.2Give 7 days prior written notice to the Approved Affiliate of your intention to terminate; or
8.2.3Give less than 7 days prior written notice to the Approved Affiliate of your intention to terminate, in circumstances where the Approved Affiliate is in breach of any fundamental terms and conditions You have imposed on the Approved Affiliate in respect of a program or programs.
8.3In relation to clause 8.2.1, You must notify Your Commission Factory point of contact or Account Manager of the termination.
8.4Commission Factory is not responsible for an Approved Affiliates' non-compliance with a termination by You.
8.5Commission Factory may terminate an Approved Affiliate from Your program or programs in Commission Factory's sole discretion and is not obligated to notify You of their removal. In doing so Commission Factory will act in good faith and use its best endeavours to give notice to You of the need to terminate an Approved Affiliate before doing so.
9.1Any refund due to you by Commission Factory is subject to Your merchant account remaining in credit. Commission Factory's "Override" is non-refundable.
9.2Banner design fees, banner hosting and Data feed service fees and other promotional advertising service fees are non refundable.
9.3Account balance refunds are issued back to the Bank Account or Credit Card used to make the initial purchase as advised by You.
9.4Commission Factory is under no obligation nor will You hold Commission Factory responsible to compensate You for financial losses (including loss of profits) as a result of Network software malfunctions, banking software malfunctions, payment gateway malfunctions or inadvertent Merchant selections.
9.5Commission Factory will not be held liable or responsible to repay, reimburse any bank fees or charge backs that You may be subjected to due to use of the Commission Factory service and software or as a result of any misuse by Approved Affiliates.
10.1Commission Factory is not liable for any losses of any kind incurred by You resulting from:
10.1.1The by use by You of any service provided by Commission Factory;
10.1.2Any act or omission by an Affiliates or Approved Affiliate;
10.1.3The closure of Your merchant account;
10.1.4The termination of an Approved Affiliate / Merchant relationship;
10.1.5The malfunction or failure of Commission Factory's systems, the Network or Commission Factory's service offering due to matters including, but not limited to, the failure of Commission Factory's or any other entity's software, hardware or communications technology or any part thereof; or
10.1.6Delays, losses, errors, or omissions resulting from failure of any telecommunications or any other data transmission system, any act of God, any outbreak of hostilities, riot, civil disturbance, acts of terrorism, the acts of Government or authority (including refusal or revocation of any license or consent), fire, explosion, flood, theft, malicious damage, strike, lockout or industrial action of any kind..
10.2All services provided by Commission Factory must be used strictly for lawful purposes only.
10.3Commission Factory does not censor, edit or take any responsibility whatsoever for Approved Affiliate web site content or communications from the Affiliate web site.
10.4The Network may now, or hereafter from time to time, contain links to third-party web sites. We do not control, investigate, monitor or check such web sites. We are not responsible for the computer programs available from, content in or opinions expressed at such web sites.
10.5We provide such third-party links only as a convenience to visitors of the Network, and the inclusion of a link does not imply approval or endorsement of the linked site by Us.
10.6If You decide to leave the Network and access any third-party web site, You do so at your own risk. Commission Factory will not be responsible for any injury or any liability to You resulting from web site content or communication that may be offensive, misleading or illegal.
10.7Commission Factory is not liable or obligated to support or provide any technical advice relating to any Third Party software being used.
11.1Commission Factory claims copyright in relation to the software and all website content (excluding Affiliate websites) comprising the Network and otherwise owned or operated by Commission Factory.
11.2You may not, however, distribute, modify, transmit, reuse, re-post, or use the content of the Network for public or commercial purposes, including the text and images without Commission Factory's written permission.
11.3You should assume that everything You see or read on the Network is copyrighted unless otherwise noted and may not be used without the written permission of Commission Factory. Commission Factory neither warrants nor represents that your use of materials displayed on the Network will not infringe rights of third parties.
11.4Any communication or material You transmit or post to the Network by electronic mail or any other method, including any data, questions, comments, suggestions, or the like is, and will be treated as, non confidential, non-proprietary. Anything You transmit or post may be used by Commission Factory or its Affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, You consent to the posting and transmission of any data from your online shopping cart, online store and any other source. Commission Factory is free to use any data, ideas, concepts, know-how or techniques contained in any communication You send to the Network for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information, without any additional compensation to You.
11.5The trademarks and logos displayed on the Network are registered Trademarks of Commission Factory and/or others. Nothing contained on the Network should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Network without the written permission of Commission Factory or such third party that may own the Trademarks displayed on the Network. Your misuse of the Trademarks displayed on the Network, or any other content on the Network, except as provided in the Agreement, is strictly prohibited. Commission Factory will aggressively enforce its intellectual property rights to the fullest extent of the law.
12.1You hereby agree to indemnify and hold harmless Commission Factory, and its subsidiaries and merchants, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable solicitors' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on
(i)any claim that Our use of trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,
(ii)any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or
(iii)any claim related to your site, including, without limitation, content therein not attributable to Us.
(iv)any fraudulent activity that may occur whilst using the service of Commission Factory.
(v)any fees or losses incurred as a result of using the Network.
12.2Commission Factory has not reviewed all the sites linked to the Network and is not responsible for the content of any offsite pages or any other sites linked to the Network.
12.3Commission Factory assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, Your computer equipment or other property as a result of Your access to, use of, or browsing in the Network or downloading of any materials, data, text or images.
13.1"Confidential Information" includes any information which is disclosed to You and marked or described as confidential. Confidential Information also includes any information disclosed to You on the Network that is not otherwise accessible by the general public and which ought reasonably be treated as being confidential. Knowledge, information about Affiliates and Approved Affiliates, data and software are all examples of Confidential Information. If You are unclear on whether any information disclosed to You is Confidential Information, You should ask Us whether it can be disclosed.
13.2By entering this Agreement, You consent to Us publishing your name on Our websites. You also consent to Us publishing the information You provide to Us on Our websites, unless You notify Us that that information is confidential or that information ought reasonably be treated as being confidential.
13.3You must not disclose any Confidential Information to any third parties and You must take all reasonable steps and precautions to prevent disclosure of Confidential Information. You must not use Confidential Information for any purpose other than enjoying Your rights or fulfilling Your obligations under the Agreement.
13.4Confidential Information does not include any information which is publicly available, unless it has become publicly available because You have disclosed it. Confidential Information also does not include any information which You receive from a third party, unless that third party is breaching an obligation of confidentiality by disclosing it to You.
13.5The disclosure of Our Confidential Information may cause Us irreparable harm, or may cause Us losses which cannot be recovered or compensated. Therefore, if Confidential Information is disclosed in breach of the Agreement, or if disclosure of Confidential Information is threatened, You agree that We can obtain an injunction against You to prevent disclosure. Our right to an injunction is in addition to any other rights We may have to protect Our Confidential Information. If the court grants Us an injunction, You must pay all of Our legal costs of applying for the injunction.
14.1The Agreement will be interpreted so as to give effect to the intention of the parties and the spirit of the Agreement when taken as a whole.
14.2In the Agreement, where any items are listed or given as examples, the list and examples are not definitive. Therefore, items similar to the listed items or examples may also be included. Where We use the singular tense in the Agreement, We are also referring to the plural tense (and vice versa). When We refer to an individual, We are also referring to companies and other legal entities.
14.3The Agreement is personal to You. You may not assign or transfer any of your rights or obligations unless We agree in writing. We can assign or transfer any of Our rights or obligations without obligation to give You notice.
14.4Neither party will be liable under the Agreement if it is prevented from performing its obligations by anything beyond its reasonable control.
14.5The Agreement will not constitute a partnership or joint venture of any kind between You and Us, nor between any party and the agent of another party for any purpose. You have no authority to bind Us and We have no authority to bind You.
14.6Third parties don't have any rights under the Agreement.
14.7The Agreement is the whole agreement between You and Us. Any older agreements between You and Us relating this subject matter are replaced by the Agreement. Any terms or representations which are not included in this Agreement are not enforceable, but We are not limiting Our liability for fraud or fraudulent misrepresentation.
14.8You agree to pay any, and all of Commission Factory's legal expenses incurred as a result of a dispute between Us and You regardless of rulings and decisions.
14.9You agree that Commission Factory may identify You as a Commission Factory Merchant in its client lists and other marketing materials, and that Commission Factory may issue a press release approved by You (which approval shall not be unreasonably withheld) announcing the establishment of the relationship between You and Us. Any other uses of Your name and/or logo shall require Commission Factory's prior written consent.
15.1Each Party agrees to comply with the dispute resolution procedure set out in this clause.
15.2If a Dispute arises between the Parties, the complainant must set out in writing:
(a)the nature of the dispute;
(b)the outcome the complainant is seeking; and
(c)what action the complainant thinks will settle the dispute.
15.3The Parties will make every effort to resolve the dispute by mutual negotiations.
15.4If the Parties are unable to reach a resolution of the dispute within twenty-one (21) days, or such other period as is agreed in writing by the Parties, any of the Parties may by written notice, advise the other party that it seeks to have the dispute resolved by mediation (a "Mediation Notice").
15.5Within twenty-one (21) days after the date of service of the Mediation Notice, the Parties may refer the matter to a mutually agreed mediator. If no agreement can be reached as to the identity of the appropriate mediator, then, at the written request of either of the Parties, President of the Queensland Law Society must refer the Dispute to a mediator ("Mediator"). That referral must be made within fourteen (14) days of receipt of the request.
15.6The Mediator and the Parties must act to commence the mediation within twenty-eight (days) of the Mediator's appointment.
15.7The Mediator will have the right to determine procedures and may or may not allow the appearance of lawyers on behalf of the Parties and may call for other expert assistance.
15.8The Mediator must be satisfied that the Parties have made a determined and genuine effort to resolve the Dispute and have co-operated with the Mediator.
15.9The proceedings of the Mediator must be as informal as is consistent with the proper conduct of the matter and allow the Mediator to communicate privately with the Parties or with their lawyers.
15.10The Parties agree that:
(a)everything that occurs before the Mediator will be in confidence and closed session;
(b)all discussions shall be without prejudice; and
(c)no documents brought into existence specifically for the purpose of the mediation process will be called into evidence in any subsequent litigation by any of the Parties.
15.11It will be the role of the Mediator to act fairly, in good faith and without bias with the purpose of seeking a resolution of the Dispute and to treat all matters in confidence.
15.12Each of the Parties must have the opportunity to adequately present their case.
15.13The Mediator must have regard to the fairness and reasonableness of any matters pertaining to a Dispute.
15.14The Mediator must deal with any matter as expeditiously as possible, but no later than fourteen (14) days after referral of the Dispute to the Mediator.
15.15The Parties shall each pay their own costs of and incidental to the mediation including, without limitation, their own legal costs, airfares, ground transport, accommodation, meals and expenses. The Parties will each bear the costs of the Mediator on an equal basis.
15.16The decision of the Mediator will be final and the Parties grant immunity from liability to the Mediator.
15.17Subject to the dispute resolution procedure contained in this clause, each of the Parties agrees that a Party will not (and they will not be entitled to) and hereby waive their rights to commence or maintain any action or legal proceeding in any court of law or any arbitration in respect of a Dispute until after the dispute resolution procedures contained in this clause have been observed. However, nothing in this clause will deny any Party the right to seek any injunctive relief (whether temporary, interim or final relief) from an appropriate court where failure to obtain that relief would cause or is likely to cause irreparable damage to the relevant party concerned.
15.18Each of the Parties agree that if there is a breach or threatened breach by any party of any provision of this clause, the other Party would be entitled to an injunction restraining them from committing any breach and/or further breach of this clause and/or to a stay of proceedings, without having to show or prove any actual damage has been sustained by any Party.
16.1In this Agreement "GST" means any Goods and Services Tax, Value Added Tax, Revenue Value Tax, or any other tax or charge of a like nature levied or imposed in relation to a supply (or deemed supply) of any goods, property (real or otherwise), service or any other thing.
16.2If GST is levied or imposed on or in respect of any supply made under or in relation to this Agreement for which consideration is a monetary payment, then the amount payable for that supply is increased by the rate at which that GST is levied or imposed.
17.1The regulations, terms and conditions contained herein represent the complete, final and exclusive agreement between Commission Factory and You, and supersede all prior agreements, representations and understandings between Commission Factory and You.
17.2The Agreement may be terminated by Commission Factory at any time. However, such termination does not affect the enforceability of the terms and conditions of the Agreement as they relate to acts and omissions during the period prior to such termination.
17.3Commission Factory reserves the right to change the terms and conditions of the Agreement by giving you reasonable notice of the change. You agree that fourteen (14) days notice amounts to reasonable notice. It is also agreed that after any Agreement changes, Your continued use of the Network constitutes acceptance of such changes to the Agreement. If You do not agree with changes You may terminate the Agreement in accordance with Clause 7.
17.4Commission Factory reserves the right to change the functionality of the Network at any time without notice.
17.5If any provision of the Agreement conflicts with any other rule, regulation, term or condition of the Network, the terms and conditions of the Agreement shall govern.
17.6In the Agreement unless the context otherwise requires:
(a)Words denoting the singular number include the plural and vice versa;
(b)Words denoting any gender include all genders;
(c)Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d)Words denoting natural persons include bodies corporate and unincorporate and vice versa;
(e)References to clauses and schedules are to the clauses of and schedules to the Agreement;
(f)Headings are for convenience only and may not affect interpretation;
(g)References to any party to the Agreement include the party's successors and permitted assigns;
(h)References to any agreement or instrument include references to that agreement or instrument as amended, novated, supplemented, varied or replaced from time to time; and
(i)References to any legislation or to any provision of any legislation include any modification or re-enactment of that legislation or any legislative provision substituted for, and all delegated legislation and statutory instruments issued under, that legislation or provision.
17.7Where any provision of the Agreement is rendered void, unenforceable or otherwise ineffective by operation of law, such avoidance, unenforceability or ineffectiveness that provision is severed from the Agreement and will not affect the enforceability or effectiveness of the remaining provisions.
17.8The Agreement is governed by and must be interpreted in accordance with the laws for the time being in force in Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in that State.
18.1You agree that if you or by any communication have chosen "exclusive" subscription package in your account to be bound by the exclusive terms outlined below:
18.1.1You agree to exclusively and solely use Commission Factory it's technology and services for all affiliate and performance marketing activity in the Australian and New Zealand regions.
18.1.2You agree to within (30) days of this agreement being in effect to discontinue any current commercial relationships with any affiliate marketing providers (affiliate networks) that conduct business activity in the same market you wish to engage Commission Factory to target.
18.1.3The exclusivity and agreement period will be active while the "exclusive" subscription package is in effect and for a minimum period of six (6) months from the program launch date.
18.1.4During the agreement period if you close your program or terminate this agreement for any reason and at the date of termination the "exclusive" subscription package was in effect, you agree not to enter into a direct or indirect commercial agreement with any affiliate or performance marketing providers (e.g. an affiliate network) for twelve (12) months without first contacting us to reactivate the relationship.